At issue in the case is whether government can ban worship services from school property to enforce the constitutional separation of church and state or whether the First Amendment's guarantee protects religious worship like any other type of expression.
Over the last two decades, little by little through a series of rulings, the Supreme Court has allowed more and more religious activity in public schools -- at least after class. But the high court has never ruled on whether public school districts must allow actual worship services in unused classrooms.
The new case out of New York focuses on that issue.
In 1994, the Bronx Household of Faith church applied to use space in the Anne Cross Mersereau Middle School in The Bronx for its Sunday morning worship service.
But the church ran afoul of New York state law, which said a local public school district may permit its facilities to be used outside of school hours for such purposes as "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community," as long as those uses are "non-exclusive and ... open to the general public."
Using that law, New York City's Department of Education, as it was then called, developed a written policy governing the use of school facilities during after-school hours as part of its "Standard Operating Procedures Manual."
The policy, or SOP, permitted outside groups to use school premises after-hours in the ways described by state law, but specifically banned the use of school property for "religious services or instruction." Later, the SOP was amended to ban use of school property for "religious worship services, or otherwise using a school as a house of worship."
Bronx Household went to court and asked for an injunction against the SOP, but a federal judge ruled summarily for the school district and a U.S. appeals court affirmed.
Then came the Supreme Court's 6-3 ruling in 2001's Good News Club vs. Milford (N.Y.) Central School -- the latest in a string of cases including 1993's Lamb's Chapel vs. Center Moriches Union Free School District and Rosenberger vs. Rector & Visitors of the University of Virginia, telling schools they couldn't discriminate against religious expression solely because of religion.
In the Good News Club case, the high court majority ruled it was unconstitutional for a public school district in upstate New York to exclude from its facilities "a private Christian organization for children." The Good News Club had asked permission to use space in a school building after school hours to sing songs, read Bible lessons, memorize Scripture and pray.
"By denying the club access to the school's limited public forum on the ground that the club was religious in nature," Justice Clarence Thomas' majority opinion said: "Milford discriminated against the club because of its religious viewpoint in violation of the free speech clause [of the First Amendment]. That exclusion is indistinguishable from the exclusions held violative of the clause in Lamb's Chapel ... where a school district precluded a private group from presenting films at the school based solely on the religious perspective of the films, and in Rosenberger, where a university refused to fund a student publication because it addressed issues from a religious perspective."
Four of the high court's six-member majority in Good News Club are still on the Supreme Court today. Only one of the three dissenters remains.
With the Good News Club ruling under its arm, Bronx Household went back to court, and this time the federal judge ruled in the church's favor. From that time, the church rented a classroom for its worship services.
Until the a panel of the 2nd U.S. Circuit Court of Appeals reversed and threw out the judge's injunction against the SOP last June.
Writing for the 2-1 majority, Circuit Judge Pierre Leval appeared to walk a tightrope stretched between the Supreme Court precedents.
"The prohibition against using school facilities for the conduct of religious worship services bars a type of activity. It does not discriminate against any point of view," Leval said. "The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view, which the [city education] board does not prohibit. The conduct of services is the performance of an event or activity. While the conduct of religious services undoubtedly includes expressions of a religious point of view, it is not the expression of that point of view that is prohibited by the rule. Prayer, religious instruction, expression of devotion to God, and the singing of hymns, whether done by a person or a group, do not constitute the conduct of worship services. Those activities are not excluded."
Leval's opinion "concludes that (1) because the rule does not exclude expressions of religious points of view or of religious devotion, but excludes for valid non-discriminatory reasons only a type of activity -- the conduct of worship services -- the rule does not constitute viewpoint discrimination; and (2) because [the education board and city] reasonably seek by this rule to avoid violating the establishment clause [of the First Amendment], the exclusion of religious worship services is a reasonable content-based restriction, which does not violate the free speech clause [of the First Amendment]."
Circuit Judge Guido Calabresi joined in Leval's opinion and wrote a separate opinion concurring in the judgment.
The third member of the panel, Circuit Judge John M. Walker, dissented.
The board's SOP "withholds otherwise broadly available school-use permits from religious groups seeking to use school facilities during non-school hours 'for the purpose of holding religious worship services, or otherwise using a school as a house of worship.'"
Walker said "the majority concludes that the ban on 'religious worship services' does not offend the First Amendment's free speech clause because it is a neutral, content-based restriction that is reasonably implemented to avoid an establishment clause violation.
"I disagree," Walker said, adding the SOP is an "impermissible viewpoint discrimination against protected speech and is unsupported by a compelling state interest. In this case, Bronx Household's worship services fit easily within the purposes of the board's broadly available forum and may not be the object of discrimination based upon the religious viewpoint expressed by the services' participants. The board's purported establishment clause concerns are insubstantial: They are not reasonable, much less a compelling reason for the board to shut the door on Bronx Household's protected speech."
After the appeals court ruling, Bronx Household asked the U.S. Supreme Court for review, requesting the justices decide in part:
-- "Whether the government engages in viewpoint discrimination when it excludes expression that is in all other respects permitted in the forum because it is labeled a 'religious worship' service,"
-- "Whether government concern about violating the establishment clause, and not an actual violation of that clause, justifies the exclusion of private religious expression from a generally open forum," and
-- "Whether the government policy expressly excluding 'religious worship services' from this forum violates the free exercise [of religion] clause."
In a Sept. 28 article on the case, The Wall Street Journal points out: "About 60 churches currently use New York City public-school auditoriums and classrooms for worship activities after school hours and on weekends. The arrangement has allowed small, cash-strapped churches to avoid the city's high rents, as the schools charge a nominal fee to cover the costs of custodians and security staff."
But, the Journal says: "Should the [high] court refuse the case, church leaders would have to find other, possibly more expensive places to meet. Churches meeting in local schools pay 'substantially below … market rent' for the space, according to the city's law department."
On the Bronx Household Web site, Pastor Bob Hall posted a rather poignant open letter about the case, and the struggles for true believers in a ferociously secular society.
The appeals court ruling, unless reversed by the U.S. Supreme Court, "will put us out on the street, literally."
He compares the legal battle to the battle over legalizing same-sex marriage -- "The intrusion of the state into institutions and activity that transcends culture and antedates the state" -- and says the current situation parallels state action to control the church under Nazi Germany.
Hall says "that 'wall of separation' [between church and state] is beginning to crack. What difference does it make if you're totally separate from the state and the state manages to marginalize you to the fringes of society or you are a state church and, thereby, totally absorbed into it? In both cases the church is rendered powerless by the state."
In the case gripping his church, "the state now claims the right to take on the role of a theologian by making a distinction between religious discussion and/or instruction (which is allowed) and religious worship (which is not allowed). Mind, this is under the rubric of separation of church and state. ... Now we are in the position of having to consult the state, which, on its extended use application form, asks us to identify our activities. They want to know if our allowed religious activity has crossed over into the no man's land of religious worship.
"In other words," he adds, "the things that happened to the church in Germany in the 1930s could very well happen here. It might move at a slower pace but these things have a way of accelerating and once they are in motion, it seems that the law of gravitas takes over. The anti-Christian posturing is becoming increasingly brazen."
As for the Supreme Court argument, "If this is a door that God has opened let us pray together that it will not be shut by man! On the other hand if God is shutting this door," Hall said, "we will trust in his all-wise providence because we know that he has something even more wonderful and awesome in mind. His purposes will not be thwarted."
Divinely inspired or not, the Supreme Court should decide whether to hear the case in late November.